Fisher v. Hollowell

• Citation: 199 Iowa 335,202 N.W. 103
• Decision Date: 10 February 1925
• Docket Number: No. 36674.,36674.
• Parties: FISHER v. HOLLOWELL.
• Court: Iowa Supreme Court

199 Iowa 335

202 N.W. 103

FISHER

v.HOLLOWELL.

No. 36674.

Supreme Court of Iowa.

Feb. 10, 1925.

Appeal from District Court, Lee County; W. S. Hamilton, Judge.

Habeas corpus to secure the discharge of petitioner from the state penitentiary. A demurrer to the petition was sustained, and, the petitioner electing to stand upon the ruling, the petition was dismissed. Petitioner appeals. Reversed and remanded.Herminghausen & Herminghausen, of Ft. Madison, and Healy & Breen, of Ft. Dodge, for appellant.

Ben J. Gibson, Atty. Gen., Maxwell A. O'Brien, Asst. Atty. Gen., G. L. Norman, Co. Atty., of Keokuk, and R. N. Johnson, Deputy County Atty., and C. C. Martin, both of Ft. Madison, for appellee.

VERMILION, J.

The appellant sued out a writ of habeas corpus in the district court. The defendant and appellee is the warden of the state penitentiary. The petition alleged that the petitioner had been sentenced by the district court of Shelby county to imprisonment in the state reformatory for an indeterminate period not exceeding five years for the crime of grand larceny; that he was imprisoned under that sentence from November 13, 1915, till December 5, 1916, at which time he escaped; that after being at large for nearly three years he was apprehended and returned to the reformatory on August 7, 1919; that thereafter he was convicted in Jones county of the crime of prison breach or escape, and on February 20, 1920, was sentenced to imprisonment--whether in reformatory or penitentiary does not appear--for an indeterminate period not exceeding five years; that the latter judgment provided: “This sentence to begin at termination of present sentence now being served.” It was alleged that on the date of the last judgment the petitioner was transferred to the pentitentiary by order of the state board of control. It was further alleged that while serving the sentences both in the reformatory and penitentiary the petitioner had earned all good time provided by law; that, considering the two sentences as one continuous sentence, both sentences expired on March 1, 1924; and that thereafter he was unlawfully restrained of his liberty by the defendant. A demurrer to the petition was sustained.

The question presented by the demurrer is whether the diminution of sentence allowed the applicant as a prisoner in the penitentiary or reformatory for good conduct is to be computed upon each sentence separately, or as upon one continuous sentence for the total time of both.

Section 5703, Code of 1897 (see section 3774, Code of 1924), provided in part as follows:

“Each prisoner who shall have no infraction of the rules and regulations of the penitentiaries or laws of the state recorded against him, and who performs in a faithful manner the duties assigned to him, shall be entitled to the diminution of time from his sentence as appears in the following table for the respective years of the sentence. * * *”

From the table incorporated in the statute it appears that the maximum “good time” so allowed is one month for the first year of the sentence, and increases each year thereafter up to and including the sixth year, and for the sixth and each subsequent year it is six months; and that, if full good time is allowed, a prisoner under a five-year sentence is required to serve but three years and nine months, and a prisoner under a ten-year sentence is required to serve but six years and three months. If the petitioner, serving 2 five-year nonconcurrent sentences, and entitled to the maximum good time, is to have his good time computed on each sentence separately, he will be required to serve a total of seven years and six months, while, if it is to be computed as upon a continuous sentence of ten years, he would be entitled to be discharged after serving but six years and three months.

Section 5705, Code 1897 (section 3777, Code 1924), would seem to afford an answer to the question presented. It is as follows:

“When a convict is committed under several convictions with separate sentences, they shall be construed as one continuous sentence in the granting or forfeiting of good time.”

It is the contention of the appellee, however, that this section refers only to commitments on separate sentences imposed by the same court at the same time. It is to be observed that no such limitation of the scope of the statute is to be found in statute itself. Its terms are broad enough to cover sentences upon separate convictions by different courts at different times. The precise question has not been before presented to us. Decisions in other jurisdictions are cited by both parties as bearing upon the proposition.

In California it was held, under a statute providing that good time should be deducted from the “entire term of penal servitude to which the convict shall be sentenced,” that two separate sentences should be considered as one continuous term for the purpose of commutation. Ex parte Dalton, 49 Cal. 463. After a change in the statute, made soon after the decision in the Dalton Case, providing that deductions for good behavior of a prisoner “shall be allowed from his term,” it was held, where the same court imposed two separate and cumulative sentences of imprisonment, that the prisoner was only entitled to credit for good behavior upon each term as it was served, and not upon the terms considered as a continuous period of imprisonment. Ex parte Clifton, 145 Cal. 186, 78 P. 655. The decision turned largely upon the evident legislative intent to change the rule announced in the Dalton...